Criminal Defense LawyerLakeland, Tampa, FL

How does a DUI trial work when arrested for DUI refusing the breath test also

In Polk County and Florida, if you are arrested for DUI and refuse the breath test, you will be charged with a DUI.  However, if you have a DUI, refuse the breath test, lose the Formal Review, and your license is suspended for one year for refusing the breath test, the next time you get arrested for DUI and refuse the breath test, you will be charged with two criminal charges:

  • Count 1 -  DUI
  • Count 2 - Refusing to submit to a lawful test of your breath.

That is just one of many reasons why it is so important to request a Formal Review within 10 days of your DUI arrest in Polk County and fight the administrative suspension of your license.  In addition to losing your driving privileges, you could be charged with another crime in the future that carries a penalty of up to 1 year in jail and a $1,000.00 fine.

Call Polk DUI attorney Thomas C. Grajek NOW so you DO NOT MISS THE 10 DAY DEADLINE!!!

 863-838-5549  CELL

So how does a DUI trial work? Does the DUI trial and refusal to submit to breath testing happen in the same criminal trial?  Does the jury hear about your prior DUI when deciding if you are guilty of the new DUI? Doesn't that have a prejudicial affect on my DUI case because the jury would know I had a prior DUI? Will the jury find me guilty just because of my prior DUI?  Trying the DUI and Refusal case together absolutely does prejudice your case!!!  A defendant on trial is entitled to a presumption of innocence and if the jury knows you had a DUI previously, you will not get a fair DUI trial in Polk County.
As an experienced Polk County DUI lawyer, it is my job to keep up to date on the latest ruling from the appellate courts on your case. Today, the 4th District Court of Appeal agreed and held that a trial court must sever the DUI case from the breath test refusal case!  The court found that one of the elements the prosecutor must prove to establish a  violation of Florida statute 316.1939 “refusal to submit to testing” is:

The defendant’s driving privilege had been previously suspended for a prior refusal to submit to a lawful test of his or her breath, blood, and/or urine.

This comes from the Florida Standard Criminal Jury Instruction 28.13.  The court found this situation similar to a person charged with felony DUI.  Any person convicted of a third DUI within 10 years or a fourth or subsequent DUI can be charged with felony DUI in Polk County.  A felony DUI is a Third Degree Felony punishable by not more than a $5,000 fine and/or 5 years imprisonment.  In a felony DUI, the jury is first instructed on the elements of DUI, then, if the jury finds the defendant guilty of DUI, the jury is required to determine, in a bifurcated or separate procedure, whether the state attorney proved the necessary prior DUI convictions to qualify the offense as a felony.
When your facing a serious criminal charge, you need a lawyer that is a member of the National Association of Criminal Defense Lawyers (NACDL) and the Florida Association of Criminal Defense Lawyers (FACDL) that knows the most recent developments and issues with the Intoxilyzer 8000 breath test machine and DUI case law to fight for you in court!



Aggressive Polk County DUI attorney handling all DUI arrests in Florida including Bartow, Lakeland, Winter Haven, Mulberry, Haines City, Auburndale, and Lake Wales.

Categories: Criminal Defense
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